The Law Commission is
busier than at any time in its history. We have a large
range of projects in the criminal law and public law area.
And, of course, criminal law is a branch of public law.

Sale and Supply of Liquor

Last week the
Associate Minister of Justice, the Hon Lianne Dalziel, gave
the Law Commission terms of reference for a comprehensive
review of the regulatory framework for the sale and supply
of liquor.

This is an ambitious project that will take
more than two years.

The review will aim to define the
objectives and principles of a New Zealand framework for
regulating the sale and supply of liquor, and develop a
coherent framework.

The objective of the Sale of Liquor
Act 1989 is to establish a reasonable system of control over
the supply and sale of liquor to the public with the aim of
contributing to the reduction of liquor abuse so far as that
can be achieved by legislative means. There is, however,
increasing concern regarding the extent of alcohol related
harm. Communities seem to be frustrated by their inability
to effectively manage that harm.

The Sale of Liquor Act
1989 was based on recommendations made by the 1986 Working
Party on Liquor chaired by the late Sir George Laking. For
those of you who cannot remember the state of the previous
law, let me tell you it was remarkable. There were 29
different sorts of licence. The law was a potpourri of
confusion, economic protection and lack of principle.

What the objectives of the old law were was hard to say.
The Laking Working Party said the 1962 Act “failed to
break out of the pattern of the past and continued largely
to be a vehicle for the reconciliation of the conflicting
interests of the liquor industry and its opponents.” The
Laking Working Party recommended reduction of the number of
types of licence to four. And that is now the law.

One
problem with liquor is that it is always the subject of a
conscience vote in Parliament. This does not help. Indeed
it is hard to see these days why liquor should be the
subject of a conscience vote. The fact that it always has
been is hardly a good reason.

I suspect the practice has
its origins in the prohibition movement late in the 19th
century and early in the 20th century. Since that was such
a strong political movement, it was impossible for members
of political parties to agree on a subject so divisive. I
wonder if that is still the case. Perhaps the time has come
to reconsider the matter.

If there were not a conscience
vote, it would certainly assist in securing a coherent,
consistent and rational framework for dealing with a
substance that imposes significant social costs on New
Zealand, but will continue to be a part of our life. The
Law Commission will examine the issue.

It is now more
than 20 years since the Laking Working Party report. It was
a significant and substantial reform in its day. But the
caravan moves on. Laws always have to be reviewed to see
that they meet the current circumstances and demands. Laws
need to be adjusted to fit new realities.

The Sale of
Liquor Act has been amended substantially since its
enactment in 1989. The amendments that have been made have
not always added to its coherence or its tidiness. Sir John
Robertson chaired an Advisory Committee on the sale of
liquor that reported in 1997. Significant changes were made
as a result of that report and incorporated by the Sale of
Liquor Amendment Act 1999. Among them was the reduction of
the minimum drinking age to 18 years and Sunday trading.

The terms of reference for the present review are broad.
It is a root and branch review. Research carried out since
the Laking Working Party Review and the 1997 Robertson
Review has shed light on the scale of costs imposed by
alcohol misuse in New Zealand. A 2002 study estimated that
the social cost of alcohol-related harm included costs of
$760m for the public health sector, crime-related costs of
$280m, social welfare costs of $232m, other government
spending costs related to alcohol harm of $383m and lost
productivity of $1.353b. All these amounts are expressed in
2008 dollars.

Another study estimated the health harm in
New Zealand from alcohol use at around 12,000 years of life
lost per year with an even greater burden resulting from
alcohol-related disability.

An appropriate legislative
framework can make a contribution to minimising
alcohol-related harm. How much of a contribution is not an
easy question to judge. In the end it is all a question of
balance and community attitudes.

The terms of reference
for the Law Commission’s comprehensive review bear a
striking similarity to those of the Laking Working Party
that reported in 1986. But there are also a number of
specific points that are drawn to particular attention. In
fact there are 15 of them.

The terms of reference are as
follows:

(1) To examine and evaluate the current laws and
policies relating to the sale, supply and consumption of
liquor in New Zealand.

(2) To consider and formulate for
the consideration of Government and Parliament a revised
policy framework covering the principles that should
regulate the sale, supply and consumption of liquor in New
Zealand having regard to present and future social
conditions and needs.

To deal explicitly with a number of
issues, including:

• the proliferation of specific
outlets and the effect this has on consumption;

• how
the licensing system should be structured and who should be
responsible for which aspects of licensing decisions;

•
revising the licence renewal and fee framework to consider
whether risk can be more appropriately managed and to ensure
that the funding of the licensing and enforcement regime is
adequate;

• to ensure that unnecessary and
disproportionate compliance costs are not imposed by the
licensing system;

• the age at which liquor can be
purchased;

• the responsibility of parents for
supervising young members of their family who drink;

•
the influence of excise tax on alcohol and how pricing
policies can minimise harm from alcohol consumption;

•
advertising of liquor and whether there should be
restrictions on discounting alcohol or advertising
discounts;

• the relationship between the Sale of Liquor
Act 1989, the Resource Management Act 1991 and the Local
Government Act 2002;

• the relationship between the Sale
of Liquor Act 1989 and the liquor-related offences in the
Summary Offences Act 1981;

• the application of
competition law to the sale of liquor;

• the need to
ensure the appropriate balance between harm and consumer
benefit;

• the health effects of alcohol use and the
ways to ameliorate these adverse effects;

• the effects
of alcohol use on the level of offending in the community
and consideration of measures to minimise such offending;
and

• enforcement issues in relation to liquor,
including penalties, bans, measures to control alcohol
related disorder and to deal with intoxicated people, and
methods for preventing the use of fake proof-of-age
identification.

(3) To prepare an issues paper for
publication and take submissions on it, and to engage in
extensive public consultation

(4) To prepare a final
report, including the proposed new policy framework and
draft legislation, so that people can judge accurately the
precise effects of what is proposed.

On the same day that
the Associate Minister of Justice announced the terms of
reference for the Law Commission’s inquiry, the Government
introduced a Bill, the Sale and Supply of Liquor and Liquor
Enforcement Bill.

The Bill is designed to implement the
recommendations arising from the review of the sale and
supply of liquor to minors and the review of the sale of
liquor and liquor enforcement issues, which were both
undertaken by the Ministry of Justice. It introduces a new
system of enforced self-regulation of alcohol advertising
that arose out of the review of the regulation of alcohol
advertising.

The Bill also seeks to address the drinking
behaviour of minors. The explanatory note to the Bill
summarises its policy objectives in the following form:

• Support a more moderate drinking environment and
culture to reduce the normalisation of youth drinking;

•
Enhance the responsibility of friends and adults who supply
alcohol to minors;

• Increase youth responsibility and
accountability;

• Improve compliance and responsibility
of industry;

• Increase community input into licensing
decisions; and

• Clarify the types of premises that may
hold off-licences.

The Bill restricts drivers under the
age of 20 years who do not have a full licence to an alcohol
level of zero.

Perhaps the most significant amendments
relate to requiring an applicant for a liquor licence to
notify the district licensing agency of the publications in
which a public notice of application will be given and
giving the agency/licensing authority the power to decline
an application or impose conditions even where the
application for the licence is unopposed. The licensing
authority will have to have regard to any local alcohol
plan. Grocery stores with a floor area of less than 150
square metres will not be able to be granted an off-licence,
except in very limited circumstances.

The Bill
demonstrates a substantial pulling back from the liberality
that has characterised the law in recent times. This law,
if it is passed by Parliament, along with the rest of the
Act, will be looked at by the Law Commission in its review.

I want to say a few words about the way in which the Law
Commission will go about conducting this review. There are
important and conflicting social issues, health issues and
law and order issues involved in this review. It will
require widespread consultation. We will do this in a
systematic way by setting up reference groups with which we
can interact on a continuing basis.

Among those groups
will be:

• The various industry stakeholders;

•
Treatment services;

• Local Government;

• Māori
groups;

• Pacific Island interests;

• Asian
communities; and

• Any others that show an interest.

Many departments of state and ministries have interests
in aspects of the liquor law. The core agencies include the
Ministry of Justice, which administers the Sale of Liquor
Act, the Ministry of Health, the New Zealand Police and the
Alcohol Advisory Council.

Others who will have an
interest in aspects of our work include the Ministry of
Youth Development, the Ministry of Social Development, the
Ministry of Economic Development, the Ministry of Culture
and Heritage that deals with broadcasting matters, Te Puni
Kokiri, the Ministry of Pacific Island Affairs, the New
Zealand Customs Services on account of excise tax, the
Department of Internal Affairs, the Ministry of Transport,
the Ministry of Women’s Affairs and, of course, the
Treasury.

In order to secure maximum assistance from these
government agencies, an Inter-Departmental Committee is
being established. This Committee will be chaired by the
Deputy Secretary of Justice, Jared Mullen, and its purpose
will be to co-ordinate the gathering of information and
input of ideas to the Review. This will be a very valuable
contribution to the Law Commission’s study.

Indeed,
because so many agencies have a stake in liquor issues, it
is an ideal topic for being dealt with by the Law Commission
process. The Law Commission should be given projects across
the boundaries of several portfolios and that involve a
significant degree of public consultation.

As Sir Ivor
Richardson, the retired President of the Court of Appeal
once said, the Law Commission “… is the statutory
equivalent of a semi-permanent Royal Commission with a
roving function …”.

The project on the sale and
supply of liquor has started already and the Law Commission
is recruiting some new staff with special expertise to
assist.

I must say I will enjoy leading this project.
In a previous life, I was the Minister of Justice in charge
of the Sale of Liquor Act 1989 and the policy process that
led to it.

Other projects

Let me go through the
Law Commission’s work programme in detail.

Admissibility of Previous Convictions

Following
a number of high profile trials in relation to alleged
criminal offending by members of the Police, the Commission
is reviewing existing rules of evidence around admissibility
of previous convictions, similar offending and bad character
and in particular the extent to which the Court is made
aware of the prior convictions of an accused, any other
allegation of similar offending by the accused, and any
other evidence of the accused’s bad character. This
report has been tabled in Parliament. It recommended no
changes at present but said the Act should be kept under
review.

Civil List Act 1979

The Civil List Act
1979 has not been reviewed for many years and is out of date
in a number of respects. The statute provides for the
remuneration for the Governor-General and annuities for
former Governors-General; remuneration of Ministers,
Parliamentary Under-Secretaries, and Members of Parliament;
annuities for former Prime Ministers; and authority for
appropriation for these purposes. The Act covers a range of
different interests and it is desirable for an independent
body to conduct any review. An Issues Paper on this was
published two weeks ago, and public submissions may be made
until 5 September 2008.

Comprehensive Criminal
Procedure

This is a collaborative project with the
Ministry of Justice, the Parliamentary Counsel Office and
other justice agencies to draft legislation incorporating
provisions from the Crimes Act 1961, District Courts Act
1947 and Summary Proceedings Act 1957 in a comprehensive,
plain language statute. It is designed to improve the
fairness and efficiency of court processes and to reduce
delays, and will build on recommendations from related
Commission work.

Criminal Defences: Insanity and
Infanticide

A review of the defence of insanity will
look at the application of the defence in practice, the
problems with current formulation and operation of the
defence and whether it should be retained. Further work on
the partial defence of infanticide will also be included in
this review.

Land Transfer Act 1952

The
Commission is reviewing the Land Transfer Act with a view to
modernising it and updating it. It is not proposed to review
the fundamentals of the Torrens system. The review will look
at discrete aspects of the current Act and the land transfer
system with a view to removing anomalies and recommending
improvements. The review follows on from the new Property
Law Act, which was passed earlier in 2007 and enacted
Commission recommendations set out in the 1994 report A
New Property Law Act (NZLC R29).

Maximum
Penalties

In the development of proposed reforms to
sentencing, it was recognised that there was a need to
review the role, format and structure of maximum penalties.
Changes to maximum penalties will be recommended to correct
existing anomalies and ensure consistency with the purposes
and framework of a sentencing guideline system. The work
will be co-ordinated with the Sentencing Establishment Unit
and the Sentencing Council.

Misuse of Drugs Act 1975

The Minister of Health has asked the Commission to
review the Misuse of Drugs Act 1975and the penalties
imposed under it. This will include consideration of the
way in which the statute should reflect the Government’s
overall drug policy, its alignment with other cognate
statutes, the structure of offences, and the effectiveness
of the current classification system. The Commission will
work with officials from the Ministries of Health and
Justice on this review.

Part 8 of the Crimes Act
1961

This is a review of the offences of assault and
injury to the person in Part 8 of the Crimes Act 1961,
covering the overall scheme of the Act’s provisions and
whether a more coherent scheme can be devised; the elements
and scope of individual offences; the relationship between
offences; and maximum penalty levels and relativities.

Prerogative Writs

The purpose of this project
is to simplify the expression and content of the law of
judicial review as contained in the Judicature Amendment Act
1972 and Part 7 of the High Court Rules. The focus is
procedural, not to examine the grounds of judicial review or
work towards a statutory restatement of the circumstances in
which the Court may exercise its supervisory role. An
Issues Paper on the subject was published last week. The
closing date for submissions is 30 September 2008.

Presentation of New Zealand Statute Law

The
Commission, in conjunction with the Parliamentary Counsel
Office, will investigate and recommend methods of making New
Zealand Statute Law more accessible and user-friendly by the
introduction of a more systematic method of classifying
and/or indexing Acts of Parliament. There are 1102 public
acts of Parliament on the books in New Zealand, yet much of
this law can neither be accessed nor understood by ordinary
people. A final report on this subject should be available
quite soon.

The project will also review the Statutes
Drafting and Compilation Act 1920, the governing statute for
the Parliamentary Counsel Office, as part of its wider
assessment of New Zealand statute law.

Privacy

There are 4 distinct sub-projects within this large
project:

Project 1 – overview of privacy values, changes
arising from technology, international trends and the
implications for NZ.

Project 2 – the law relating to
public registers in light of privacy considerations and
emerging technology.

Project 3 - adequacy of New
Zealand’s civil and criminal law to deal with invasions of
privacy.

Project 4 – possible changes to Privacy Act
1993.

Private School Legal Frameworks

This review
will consider issues around:

• safeguarding educational
standards in private schools because the registration
criteria in s35A of the Education Act 1989 is limited to the
school’s “efficiency”, without ability to decline
registration if previous conduct makes it inappropriate, or
to impose sanctions;

• legislative provision to cover
registration of private correspondence schools, as currently
any application for this type of school must be declined
regardless of academic merit.

Public Inquiries

This project has involved reviewing the law relating to
public inquiries, including Royal Commissions and other
commissions under the Commissions of Inquiry Act 1908,
Ministerial inquiries, ad hoc inquiries under specific
statutes, and departmental inquiries. The legislation
governing inquiries is very dated and the proposed outcome
of the project is new legislation that meets society’s
contemporary needs, reflects its diverse values and provides
effective constitutional arrangements for the conduct of
public inquiries. A bill based on the report may be
introduced shortly.

Public Safety and
Security

The Law Commission has been asked to consider
and report on whether existing legislation, including the
Crimes Act 1961 and the Arms Act 1983, should be amended to
cover the conduct of individuals who create risk to or
public concern about the preservation of public safety and
security. The Commission will make recommendations on any
changes to the law that may be necessary or desirable. The
Law Commission is required to take into account the need to
ensure an appropriate balance between the preservation of
public safety and security and the maintenance of individual
rights and freedoms.

Unified Tribunals Framework

The Commission is working jointly with the Ministry of
Justice, to identify the issues involved in establishing a
unified tribunal structure, including the operational
implications of the incremental inclusion of tribunals in
the new structure. A discussion paper was launched by the
Minister of Justice in July.

New Zealand has a
proliferation of tribunals. The project will identify (and
develop) the objectives and values of tribunals and a system
of tribunals. This work will provide the conceptual
framework for an analysis of the existing system of
tribunals, and the later assessment of the options for
reform. The purpose of the project is to provide a more
accessible, simple and structured tribunal system that
demonstrates coherent and consistent administrative law
values.

Victims Compensation

This work will
include a comparative analysis of the compensation regimes
in Australia and New Zealand and whether court ordered
reparation to victims should be paid in advance of recovery
from offenders. An interim report should be available in
September 2008.

War Pensions Act 1954

The War
Pensions Act review will look at the language and scheme of
the Act to update and modernise it. It will focus on the
administration and policy behind the war pensions scheme
with a view to streamlining some of the processes and
management of pensions. An Issues Paper of 280 pages was
published two weeks ago. Submissions close on 28 November
2008. The current structure exhibits many difficulties.

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